Citation Nr: 1446570
Decision Date: 10/21/14 Archive Date: 10/30/14
DOCKET NO. 09-12 157 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania
THE ISSUE
Entitlement to service connection for hepatitis C.
REPRESENTATION
Veteran represented by: The American Legion
WITNESSES AT HEARING ON APPEAL
Veteran and friend
ATTORNEY FOR THE BOARD
J. W. Kim, Counsel
INTRODUCTION
The Veteran had active military service from January 1987 to February 1991.
This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania.
In June 2010 the Veteran testified before the undersigned Acting Veterans Law Judge by videoconference. A transcript of the hearing is of record. In October 2011 the Board remanded the matter to the Agency of Original Jurisdiction (AOJ).
In addition to the paper claims file, there is a Virtual VA (VVA) electronic claims files associated with the Veteran's claim. The VVA file includes a September 2014 Informal Hearing Presentation. Any future consideration of the Veteran's claim should take into consideration the existence of the electronic record.
The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action on his part is required.
REMAND
Regrettably, further development is needed on the issue on appeal.
The Veteran claims his hepatitis C was incurred in service. Specifically, he claims he contracted hepatitis C from exposure to raw sewage while servicing the latrine systems on aircraft.
In the October 2011 remand, the Board (in pertinent part) requested that the AOJ schedule the Veteran for a VA examination to determine the nature and etiology of his hepatitis C.
The Veteran was afforded a VA examination in November 2011. The examiner opined that the Veteran's hepatitis C was not incurred in or caused by the claimed in-service event. The examiner noted the diagnosis of hepatitis C in 1990 during service but stated that exposure to raw sewage is not a recognized medical causing factor for hepatitis C infection. The examiner explained that hepatitis C is not food or water borne, or transmitted by a fecal-oral route.
The Board finds that this opinion is inadequate. Although the examiner explained that the Veteran's hepatitis C is not due to his exposure to raw sewage during service, the examiner did not adequately address whether his hepatitis C had its onset during service, especially in light of the fact that his hepatitis C was found during service. In that regard, the examiner did not address the more important question of whether the Veteran's hepatitis C existed prior to service and, if so, whether it underwent an increase in severity as a result of service. Thus, the AOJ should obtain an addendum that addresses the above, in compliance with the prior remand. Stegall v. West, 11 Vet. App. 268 (1998).
Prior to requesting the addendum, the AOJ should attempt to obtain any outstanding medical records. At the VA examination, the Veteran indicated he was receiving private medical care for his hepatitis C. He should be asked to submit any pertinent medical records or identify the health care provider so that VA may request the records on his behalf.
Accordingly, the case is REMANDED for the following action:
1. Ask the Veteran to submit any pertinent medical records or identify any health care provider who has treated him for his hepatitis C. Obtain these records.
2. Then, arrange for the Veteran's claims file to be reviewed by the examiner who conducted the November 2011 VA examination. The examiner should address the following in an addendum opinion:
(a) Did the Veteran's hepatitis C clearly and unmistakably (undebatably) pre-exist the Veteran's entrance into his active service in January 1987?
(b) If the Veteran's hepatitis C clearly and unmistakably existed prior to active service, is there clear and unmistakable (undebatable) evidence that the disability was not aggravated beyond its natural progression by service (i.e., did not undergo a permanent worsening of the underlying condition, as contracted with temporary or intermittent flare-ups of symptomatology which resolve with return to baseline level of disability)?
(c) For hepatitis C that did not clearly and unmistakably exist prior to service, opinion whether it is at least as likely as not (a 50 percent probability or greater) that the disability had its onset in service or is otherwise causally related to in-service injury or disease.
The examiner should explain the rationale for all opinions expressed.
3. Then, readjudicate the claim. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board.
The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).
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K. R. FLETCHER
Acting Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2014).